Professional Nominees Pty Ltd v Walsh
[1998] QCA 296
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- Unreported Judgment
- Professional Nominees Pty Ltd v Walsh[1998] QCA 296
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Professional Nominees Pty Ltd v Walsh[1998] QCA 296
Professional Nominees Pty Ltd v Walsh[1998] QCA 296
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Appeal No. 5591 of 1998
[Professional Nominees P/L v Walsh & Anor]
BETWEEN:
PROFESSIONAL NOMINEES PTY LTD ACN 010 518 322
(Respondent)Applicant
AND:
DAMIEN HAROLD WALSH AND PAULA CLARE WALSH
(Appellants)Respondents
Appeal No. 5592 of 1998
[Law Partners Mortgages P/L v Walsh]
LAW PARTNERS MORTGAGES PTY LTD ACN 068 522 261
(Respondent)Applicant
AND:
DAMIEN HAROLD WALSH
(Appellant)Respondent
McMurdo P
Thomas JA
Shepherdson J
Judgment delivered 29 September 1998
Judgment of the Court
APPLICATIONS TO DISMISS APPEALS AS AN ABUSE OF PROCESS ALLOWED WITH COSTS OF THE APPLICATIONS AND OF THE APPEALS TO BE TAXED.
| CATCHWORDS: | PROCEDURE - application to dismiss - abuse of process - argument of invalidity of Constitution and of legislation on grounds of international law rejected. |
| Counsel: | Mr L. Stephens for the applicants Mr D.H. Walsh (not of counsel) appeared on his own behalf |
| Solicitors: | Law Partners for the applicants Mr D.H. Walsh (not a solicitor) appeared on his own behalf |
| Hearing Date: | 15 September 1998 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
| Before | McMurdo P Thomas JA Shepherdson J |
Appeal No. 5591 of 1998
[Professional Nominees P/L v Walsh & Anor]
BETWEEN:
PROFESSIONAL NOMINEES PTY LTD ACN 010 518 322
(Respondent)Applicant
AND:
DAMIEN HAROLD WALSH AND PAULA CLARE WALSH
(Appellants)Respondents
Appeal No. 5592 of 1998
[Law Partners Mortgages P/L v Walsh]
LAW PARTNERS MORTGAGES PTY LTD ACN 068 522 261
(Respondent)Applicant
AND:
DAMIEN HAROLD WALSH
(Appellant)Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 29 September 1998
- This is an application to strike out two appeals brought by Mr and Mrs Walsh against two companies which successfully obtained judgments against them in the District Court and Supreme Court respectively. Although the companies are the applicants upon this motion it will be convenient to refer to Mr and Mrs Walsh as the appellants and to the companies as the respondents.
- This Court, as a division of the Supreme Court of Queensland, has inherent jurisdiction to strike out process (including an appeal) if it can clearly be seen to be an abuse of the Court's process, or as frivolous or vexatious. Dixon J has described the power as arising under the inherent jurisdiction of the court "to stop the abuse of its process when it is employed for groundless claims".[1] It needs however to be very clear that a claim is groundless before a court will summarily dismiss it thereby preventing a hearing and determination in the usual way.[2] Some cases are identified as an abuse of process by reason of the way in which a party prosecutes or fails to prosecute the process.[3] Others may be seen to be groundless from inherent lack of logic or unsustainability of a point that is asserted as the basis of the claim. The present application is based upon submissions that this appeal can be seen to be a proceeding of the latter kind.
- The District Court judgment is a money judgment ($83,333) given in the District Court against the appellants in respect of a debt secured by a mortgage on their Esk property. The other judgment, that of White J contained two orders; (1) a money judgment against the male appellant for $302,452.06, and (2) an order that he deliver up possession of premises at Hendra. The basis of the respondent's entitlement to that judgment was a mortgage in respect of which the male appellant was shown to have defaulted.
- At no time, either below or here, has there been any dispute concerning the facts that establish the liability of the appellants under the mortgages, their default thereunder, the respondent's compliance with the provisions of the Property Law Act, or the respondent's entitlements thereunder. The appellants' objection to the judgments is based on the premise that in our society there is no valid law capable of being enforced, and that there are in any event no validly constituted courts. The argument proceeds that even the Constitution of the Commonwealth of Australia is invalid, that there is no relevant valid statutory law that applies in Australia, and indeed that the common law does not apply here.
- The Court has before it an outline of submission by the appellants which repeats and expands upon submissions made by them to White J at first instance and which the appellants urge upon this Court as the basis for allowance of the appeals.
- The submissions presented below are helpfully summarised by White J in her reasons for judgment. Her Honour's reasons for rejecting those submissions are in our view impeccable and we do not think it necessary to add significantly to them. However during the application before this Court Mr Walsh to some extent amplified the argument presented below by presenting a further statement of "historical facts" to justify the conclusions sought. These additional submissions are largely contained in the following eight paragraphs which were inserted into an earlier outline of submission. The argument proceeds as follows:
"1. Whilst it is quite true that Federation under the Commonwealth of Australia Constitution did not alter the legal capacity of the Colonial Parliament of Queensland to make an [sic] implement laws with respect to Queensland as a State Parliament it needs to be remembered that it was Covering Clause 6 of the Commonwealth of Australia Constitution Act which transformed the colonies into States and this is the sole legal document creating the states. Therefore without the continuing validity of the Commonwealth of Australia Constitution there are no Australian states.
- At the time of Federation the Commonwealth gained no greater legal status than the collection of constituent colonies and remained for all legal purposes a self governing colony, as which it was designated by Covering clause 8 of the above mentioned Act. However at some point Australia became an independent sovereign nation severing the sovereign ties to the Government of the United Kingdom, a legal change which is not questioned by any reputable constitutional authority.
- Under the legal doctrine of state succession this change of sovereignty involved an interruption of legal continuity and required at least a new document of sovereignty to provide a basis for continuing government. The High Court of Australia via Mason CJ in the Australian Capital Television case ruled that the Commonwealth of Australia Constitution is not a document of sovereignty since it is still an Act of the Westminster Parliament made under the sovereignty of the UK which no longer includes Australia.
The test of a sovereign document applied by the International Law Commission of the United Nations is whether the document could be repealed by the country using the document and the United Kingdom has already notified the International Law Commission that since the Westminster Parliament alone passed the legislation it alone retains the right of repeal.
- Since the fact of Australian sovereignty is established and recognised internationally it follows that any subordinate document including the Constitution of the Commonwealth of Australia if not invalidated by sovereignty is at least modified by sovereignty and insofar as there is a clash between the document and the principles of sovereign supremacy the document must yield. Such clashes include the continuation of colonial administrations originally devised for ease of administration from London of the vast territory of Australia. By definition alone the Colonial Boundaries Act of 1895 (UK) can no longer apply and the State of Queensland therefore possesses no defined boundaries.
- It follows that whilst the appellant may not have presented the above facts in sufficient detail to persuade Judge White [sic] as to the correctness of his argument the matters presented are historical facts rather than legal opinion and therefore require a more factual and documented response that [sic] the mere assertion and sarcasm of the respondent's outline.
- Thus a finding by the High Court in Cases M34 and M35 of 1998 can have profound consequences for every aspect of the administration of law in Queensland and every other state.
- To establish otherwise involves a burden of proof upon the State and Federal governments to produce documentary evidence of when and how the Australian people, post independence whenever the High Court may adjudge that to be, willingly and with full knowledge of the circumstances agreed to the continued use of British colonial law as the basis of all Australian legal and political life. To date no authority from the Commonwealth Attorney General down has ever been able to present or even indicate where when or how such agreement and informed consent was given.
- On this basis the judgment should be stayed at least until the High Court has ruled on the substantive legal issues and the respondent should not be entitled to the benefit of the previous judgement until it and the original mortgages are proven to be lawful and to derive from valid legislation. If there is no valid legislation the respondent is not entitled to the benefit of any of the assertions in Article 1 of its outline."
One hesitates to attempt to summarise diffuse arguments of the kind here presented, but one must attempt to try to make some sense of the principal argument. The guiding thread seems to be that since 1920, when Australia allegedly achieved independence or sovereignty (doing so by becoming a Member of the League of Nations) our entire political and judicial system has had no legal validity. It is said that upon obtaining this sovereignty, all colonial laws applying to Australia (including the British Colony of the Commonwealth of Australia Constitution Act 1900 [sic]) were extinguished. The Australian Constitution is therefore said to be invalid or at least an insufficient basis for continuation of a regime of government. Likewise state constitutions which were supposed to have been saved by s. 106 of the Constitution, and laws made by the states, were not saved, and are equally invalid. It is said that the only way to obtain valid laws would be to conduct referenda to legitimise such laws as the people agree to. The consequence, according to Mr Walsh, is that there is no law to be upheld in Australia, and in his words "it is illegal, the law".
- The argument continues that to the extent to which a legal system may be said to have been reimposed by the Statute of Westminster 1931 by allowing British colonial law to continue after sovereignty, that is in direct contradiction of Article 10 of the Covenant of the League of Nations and Article 2(1) and (4) of the United Nations Charter. Under s. 51 of the latter charter, Australian citizens have a right to resist the illegal application of a foreign law. The argument proceeds that persons (notably bureaucrats and judges) who attempt to enforce such laws can be tried before the War Crimes Tribunal in Geneva and warrants for their arrest can be issued to the Australian Federal Police who are charged with upholding international law.
- There seems to be a logical difficulty in Mr Walsh coming to this Court of Appeal with a request that it commit an international crime by exercising its statutory powers in his favour, but this seems not to have troubled him. A right of appeal is of course a creature of statute, and his argument denies the lawful existence of the Court and presumably its power to correct the errors that are said to have occurred in other courts. It also denies the lawful existence of the High Court.
- When submissions of this kind are received, the Court should not lightly reach the conclusion that they are nonsense, even if that is one's initial impression. There may be a close line between the profound and the spurious. However, having studied these submissions we are prepared to identify them as of the latter kind. The submissions are apparently derived from an unidentified group of persons who, perhaps for personal gain, encourage others to present such arguments to bureaucrats and to courts. The arguments reveal basic misunderstandings of and ignorance of the initial reception of law by the colonies, and their transition into the Commonwealth of Australia. They also fail to understand the relationship between Australian law and international law.[4] The submissions well merit the term "groundless".[5]
- There are two further points that should be noted. We were referred to the fact that two litigants, apparently possessed of kits similar to the one obtained by Mr Walsh, have made applications to the High Court in the Melbourne Registry.[6] In the material relied on by the appellants, this is described as an "exciting new situation". The material proceeds:
"Almost certainly, the High Court dare not hear the applications, because to order so would destroy itself, and the current legal and political status quo. If you are involved in any matter or court case where issues are involved similar to those in M34 and M35 you can refer any bureaucrat or Judge/ magistrate to those applications. If it is a bureaucrat, mention that no action on your part will be taken pending decision of those issues by the High Court, and any further action on their part against you in the absence of the said High Court decision could constitute contempt of the High Court, and would be actionable by you.
If it is a Judge/Magistrate, apply to have your matter adjourned pending a decision by the High Court.
It should prove to be a very long adjournment."
The appellants' submission is that the present judgments should be stayed at least until the High Court has ruled on these "substantive legal issues". It is enough to say that the pendency of those two cases does not represent sufficient reason to halt the recognised process of the law or to deprive the respondents of their rights thereunder for an indeterminate period.
- Finally reference was made by Mr Walsh to some statements attributed by him to Fryberg J during a recent application before his Honour in which the respondents or one of them apparently sought to remove a caveat standing in the way of sale of the Esk property. It would seem that his Honour may have made some helpful suggestions as to issues that the appellants might wish to frame for the purposes of an adjourned hearing of that application. They are expressed in the form of the following eight questions–
"1.Can a corporation act as a receiver?
- Is the appointment valid?
- Can the appellant sue the applicant (mortgagees) for breach of duty?
- Should Mr Walsh (first applicant) sue the receiver?
- Should the applicant seek an injunction?
- Should the receiver provide security?
- Have Law Partners acted on both sides in this transaction?
- Any case outline should be listed on 17.9.98."
Whilst such matters may have relevance to ongoing disputes between the appellants and the respondents as the latter attempt to effect further remedies, they have no relevance to the anterior events which established the mortgages, defaults thereunder and the respondent's rights to judgment for money sums and possession. The matters raised before Fryberg J appear to be attempts to raise issues concerning alleged misconduct in relation to a mortgagee's sale and are not relevant to the present judgments.
- For the above reasons the present appeals should be identified as an abuse of process and be dismissed accordingly. The applications to dismiss the appeals on this basis should be allowed with costs of the applications and of the appeals to be taxed.
Footnotes
[1]Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62, 91; cf. Cox v Journeaux (No 2) (1935) 52 CLR 282, Commonwealth Trading Bank v Inglis (1973-1974) 131 CLR 311, 314; Metropolitan Bank v Pooley (1885) 10 App. Cas. 210, 214, 220; Birkett v James [1978] AC 297; Muto v Faul [1980] VR 26; Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493, 494, 498; and Madden v Kirkegard Ellwood & Partners [1983] 1 Qd R 649, 652.
[2]Dey above at 91; Kirkegard above at 652.
[3]Powell v Jedye CA 117 of 1993, judgments on 3 August 1993 and 25 February 1994.
[4] See for example Thorpe v The Commonwealth [No 3] (1997) 71 ALJR 767, 779; Sinanovic v The Queen (1998) 72 ALJR 1050.
[5] Dixon J's term in Dey above.
[6] M34 of 1998 by one Varszeghi and M35 of 1998 by W and J Voose.